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State v. Roby

Court of Appeals of Ohio, Tenth District

August 24, 2017

State of Ohio, Plaintiff-Appellant,
Ryan M. Roby, Defendant-Appellee.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 15CR-3259)

          On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellant. Argued: Seth L. Gilbert.

          On brief: Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellee. Argued: Timothy E. Pierce.


          DORRIAN, J.

         {¶ 1} Plaintiff-appellant, State of Ohio, appeals the April 27, 2016 decision and entry of the Franklin County Court of Common Pleas granting the motion of defendant-appellee, Ryan M. Roby, to suppress evidence. For the following reasons, we reverse.

         I. Facts and Procedural History

         {¶ 2} On July 2, 2015, a Franklin County Grand Jury filed an indictment charging defendant with two criminal counts: one count of possession of cocaine, in violation of R.C. 2925.11, a felony of the fifth degree; and one count of tampering with evidence, in violation of R.C. 2921.12, a felony of the third degree.

         {¶ 3} On October 26, 2015, defendant filed a motion to suppress/exclude testimony. On November 16, 2015, the state filed a memorandum contra defendant's motion to suppress. On March 29, 2016, the state filed a supplemental memorandum contra motion to suppress.

         {¶ 4} On April 26, 2016, the trial court held a suppression hearing. The parties stipulated to the admission of three exhibits in lieu of presenting testimony. The three exhibits included copies of a handwritten police report prepared by Officer John Kim of the City of Bexley Police Department, and a typed narrative supplement prepared by Officer Kim.

         {¶ 5} On April 27, 2016, the trial court filed a decision and entry granting defendant's motion to suppress evidence and exclude testimony.

         II. Assignment of Error

         {¶ 6} The state appeals and assigns the following single assignment of error for our review:

         The trial court committed reversible error in sustaining Roby's motion to suppress.

         III. Discussion

         {¶ 7} In its single assignment of error, the state contends the trial court erred in granting defendant's motion to suppress. Specifically, the state contends that (1) defendant voluntarily abandoned the contraband before he was seized, thereby relinquishing any privacy interest in the contraband, (2) the arrest did not violate R.C. 2935.10(B), (3) even if the arrest violated R.C. 2935.10(B), suppression was not a proper remedy, and (4) even if the arrest was unconstitutional, suppression was not necessary to deter future police misconduct.

         A. Standard of Review

         {¶ 8} "The review of a motion to suppress is a mixed question of law and fact." State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶ 32, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. In evaluating the motion to suppress, the trial court acts as the finder of fact and, therefore, is in the best position to resolve factual questions and evaluate the credibility of witnesses. Burnside at ¶ 8. Therefore, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. Id. "Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Id. See also State v. Johnson, 10th Dist. No. 13AP-637, 2014- Ohio-671, ¶ 6 ("We apply a de novo standard in determining whether the trial court properly denied appellant's motion to suppress.").

         {¶ 9} The trial court made the following factual findings, which we must accept as true if they are supported by competent, credible evidence:

On Friday, August 29, 2014, at approximately 10:50 a.m., Officer John Kim of the Bexley Police Department observed [defendant] walking northbound on N. Cassady Avenue at the intersection of Bellwood Avenue. Defendant was walking with a female, later identified as Melissa Laurie. Officer Kim, for reasons unexplained, knew [defendant] possibly had an active warrant out of the City of Whitehall, located in Franklin County, Ohio.
Officer Kim verified the warrant via the radio dispatcher, and executed a stop of [defendant] and Laurie at N. Cassady Avenue and Avalon Place. Upon approach, "[defendant] was informed that he had a warrant and was under arrest." (Ex. 2.) Officer Kim observed [defendant] attempt to get behind Ms. Laurie and hand something off to her. Officer Glick arrived at the scene and assisted Officer Kim in placing [defendant] in handcuffs. Prior to Glick's arrival, Kim observed Laurie throw something toward the front of the marked cruiser. Officer Glick later inspected the thrown item(s), and recovered two straws and "a bindle of a white powdery substance." (Ex. 3.) The white substance field-tested positive for heroin.
There is no allegation in the stipulated police reports that Defendant and Laurie committed a criminal offense while Officer Kim observed [defendant] and verified the warrant.

(Footnotes omitted.) (Decision and Entry at 1-2.) In its findings of fact, the trial court noted that "[t]he Parties agree a bench warrant was issued by Whitehall Mayor's Court, on or about September 4, 2014, in the Defendant's name, for failure to pay a fine and costs in Whitehall Mayor's Court Case No. 14MCR-00182, as part of Defendant's sentence for Petty Theft, in violation of Whitehall City Ordinance 537.07(A)(1)." (Decision and Entry at 2, fn. 2.) The state attached to its supplemental memorandum contra the motion to suppress a ...

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